111.6Limitations on the Right to Counsel
Key Concepts
- An indigent defendant is entitled to receive appointed counsel, but does not have free choice to select particular counsel.
- Defendant cannot be both represented by counsel and also appear pro se.
Defendant Does Not Have “Choice” of Appointed Counsel
An indigent person does not have a right to get the appointed counsel of his or her choosing. See State v. Anderson, 350 N.C. 152 (1999) (where defendant is appointed counsel, he or she may not demand counsel of choice); accord State v. Montgomery, 138 N.C. App. 521 (2000). In some circumstances, however, an indigent person may be entitled to have different counsel appointed. For more information on removal and withdrawal of appointed counsel, see the next entry in this section.
The defendant does have the right to hire retained counsel of his or her choice, subject to certain limitations. See State v. Morris, 275 N.C. 50 (1969); State v. Montgomery, 138 N.C. App. 521 (2000). The court must allow a defendant reasonable time to hire counsel of his or her choice. Compare State v. McFadden, 292 N.C. 609 (1977) (trial court erred in refusing to continue case to allow defendant to retain new counsel after previous counsel withdrew from case; there was nothing in record to indicate that defendant exercised right to select counsel in manner to disrupt or obstruct proceedings), with State v. Poole, 305 N.C. 308, 318 (1982) (“[a] defendant’s right to select his own counsel cannot be insisted upon in a manner that will obstruct an orderly procedure in courts of justice”; trial court did not err in denying continuance to allow defendant, who wanted appointed counsel removed, to hire counsel); see also 3 LAFAVE, CRIMINAL PROCEDURE § 11.4(c), at 715–21 (discussing need to balance authority of trial court to manage trial schedule and right of defendant to hire counsel of choice).
Additionally, there is no right to representation by a lay person who is not a licensed attorney. State v. Sullivan, 201 N.C. App. 540 (2009); State v. Phillips, 152 N.C. App. 679 (2002).
No “Hybrid Representation” by Appointed Counsel and Pro Se Defendant
A defendant must choose between representation by counsel or self-representation. There is no right to appear both pro se and also by counsel. See State v. Thomas, 331 N.C. 671 (1992) (defendant has only two choices—to appear pro se or by counsel); State v Porter, 303 N.C. 680 (1981) (“[I]n this jurisdiction, an accused has the right to appear in propria persona or, in the alternative, by counsel. Since defendant […] elected to retain the services of his court-appointed attorney, the trial court properly denied his motion to participate as co-counsel”); State v. Glenn, 221 N.C. App. 143, 155 n.1 (2012) (“Defendant has no right to appear both by himself and by counsel.”), quoting State v. Grooms, 353 N.C. 50 (2000). A court does not violate an indigent defendant’s right to counsel by requiring the defendant to choose between continuing to be represented by his or her current appointed counsel or proceeding pro se; an indigent defendant does not have the right to different appointed counsel unless grounds warrant substitution of counsel. See State v. Kuplen, 316 N.C. 387 (1986); State v. Glenn, 221 N.C. App. 143 (2012).
The court may refuse to consider a motion filed by a defendant personally when the defendant is represented by counsel. See State v. Williams, 363 N.C. 689, 700 (2009) (defendant cannot file motions on his or her own behalf while represented by counsel; defense counsel did not "adopt" the motions by stating, “The defendant filed some pro se motions. We need rulings on those.”); State v. Glenn, 221 N.C. App. 143, 155 n.1 (2012) (dismissing defendant’s pro se motion for appropriate relief from sentence while represented by counsel on appeal).
